Ky statute of limitations - cites?

[salome1331]

I'm posting this to several places, so if you think you've seen it before, you're probably right. I apologize for any annoyance.

I have an old credit card debt that is held by Portfolio Recovery Associates. The original account was charged off by MBNA in March, 1999. PRA filed suit against me in Circuit court in early March, 2005, using the date that PRA acquired the date as the opening date on the account. I got with a lawyer, and he has filed for dismissal based on SOL (among other things).

However, his use of the SOL as a defense is mainly on my say-so. My understanding has been that the SOL on credit card debt (open accounts) in KY is 5 years. While we can easily back up credit card=open account under the federal Truth in Lending Act, we can't find anything that clearly puts open accounts into KRS413.120, the statute that I keep seeing cited to get the 5 year SOL.

While PRA didn't file a response to the motion to dismiss, they did unexpectedly show up at the hearing (which has had to be rescheduled due to the court's time constraints), so it looks like they are going to contest this. Personally I think they'll use grounds other than the SOL, but my attorney would like to have more solid authority for using KRS 413.120. Does anyone have any cites - case law, regulations, commentary? I've not been able to find anything myself, and neither has my attorney, but both of us have somewhat limited resources for research. And apparently the KY courts don't like to issue published opinions often - no luck there so far.

All help is greatly appreciated -

Thanks!

[workinninetofive]

Hi,

Did you look here?

http://www.louisvillelaw.com/lawwire/2004_40.htm

[salome1331]

Yeah, it was one of the first places I went. But there don't seem to be any published cases on point (of course the archive doesn't go back very far).

Thanks

[workinninetofive]

Unfortunately, I'm not a legal guru. Hopefully someone else will jump in

[Guest]

Use statute of Frauds.. that basically.. from what I understand.. means they have to cough up the original contract.

You need to have the lawyer DV them right away.

They are a debt collector and that is the bottom line. They are still required to follow those laws.

Did they ever send you dunning letters before they sued you?

Did they ever notify you that you had the right to dispute?

If they didnt ever notify you in writing that they were collecting then their lawsuit is the first notice and therefor you can snag them oin the 30 day validation period.

Your attorney needs to bone up on FDCPA right away if they are not already familar with it

This is the best way to counter these jerks from JDBs is to basically beat them at their own game

Lots of luck to ya

[Sued-in-Texas]

I would like to use that statute of frauds to have the JDB show the original contract. If I can do this in a local court, would you please tell me where I can find the citation information to cite this statute?

Thanks!

[KentWA]

As Sky says, your lawyer needs to bone up on the FDCPA. You might want to provide him a copy of this article:

http://www.edcombs.com/CM/News/Fair%20Debt.pdf

It is written by a lawyer and is a very good discussion of the FDCPA.

[Sued-in-Texas]

Thanks! I don't have a lawyer (filing pro se). So I'll read this myself.

Is there a certain portion of it that is of particular note?

[Sued-in-Texas]

Why do you just have to use your word for it on the original default date with the original creditor?

Unless the original creditor did not report your debt on your credit report (which is highly unlikely), you should be able to show the original date the account was reported in arrears by the original creditor on the credit report.

Order your credit reports by mail from the "big 3" -- Experian, Equifax and TransUnion. I got my Experien one online but also got a mailed copy and the mailed copy is MUCH more helpful for use in court. The JDB sued me just outside the SOL (by one month).

On the copied page(s) you attach to your pleading, (your Answer), as an Exhibit you can blank out the other debts on the page the Judge doesn't need to see or that you might be embarrassed for him or her so see and type clearly in the blank space: REDACTED COPY.

Also, here is a link that has helped me IMMENSELY with the issue of answering a complaint that is outside the SOL (God bless 'em!):

http://whychat.5u.com/answer.html

[Sued-in-Texas]

Sky: I really don't know what the JDB did or did not send me. After years of being harrassed by collection agencies I got in the habit of not opening any mail that I didn't know where it came from -- including mail from law firms. I threw them all in the trash unopened. Is it fair to assume that I should not therefore cite the Statute of Frauds in my case?

p.s. They also could not reach me by phone. I just have a fax number that I don't answer and can call out on. It drove me batty when I was getting 10-20 calls a day from collection agencies. I quit answering their calls long, long ago.

[salome1331]

Unfortunately, the KY statute of frauds seems to specifically *exclude* credit cards. So probably no luck there...